How can a government that supposedly is one of enumerated powers spend trillions of dollars on everything from semi-porn art exhibits to bridges that lead to nowhere? How could a government of enumerated powers have gotten us into such a sinkhole of debt?

This posting will explain how the Constitution authorized Congress to spend money. Next week’s posting will explain how the Constitution limited spending. It also will explain how politicians and judges have burst those limits, resulting in the present chaotic situation.

As many readers of this website know, Congress has only the powers enumerated (listed) in the Constitution. About half of those appear in Article I, Section 8. The remainder, such as the power to regulate the Supreme Court’s appellate jurisdiction and the power to regulate federal lands, are scattered throughout the Constitution.

Virtually every congressional power requires the expenditure of some money. For some powers, only nominal spending authority is strictly within the constitutional language. For example, Congress could “establish” a post office under Article I, Section 8, Clause 7 (abbreviated I-8-7) merely by declaring a private firm as a postal carrier. The only expenditure would be to pay members of Congress and their staffs and to buy the pen and ink needed to write the law. But other powers encompass in their definitions authority to spend large amounts. For example, I-8-12 grants the power to “support” armies and I-8-13 gives power to “maintain” a navy. Supporting armies and maintaining navies require spending huge sums of money—for buying food, paying soldiers, purchasing land and equipment, and the like.

Thus, each of these powers necessarily includes at least some authority to spend.

In addition, the Necessary and Proper Clause (I-8-18) authorizes “incidental powers” that include additional spending. The Necessary and Proper Clause does not give Congress carte blanche: the Founding-Era concept of an “incidental power” was a limited one. The basic idea of incidental powers was that when you granted an express (principal) power, you probably intended also to grant subordinate (lesser) ways of carrying it out—even in some ways not absolutely necessary. The limits were that an incidental power (1) had to be subordinate to the principal power and either (2) a customary way of carrying it out or (3) so important that without it the exercise of the principal power would be subject to “great prejudice” (serious hardship). In other words, the incidental power had to be the kind of thing the parties might have anticipated when they agreed to the instrument.

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By way of illustration, during the Founding Era a customary way of “establishing” post offices was to hire employees, obtain building space, and the like. So expenditures for such purposes are “incidental” to the power to establish post offices, even if post offices theoretically could be established without them. Similarly, I-8-1 gives Congress authority to lay taxes, which theoretically could be done by private firms (as in Roman times). But the Founding-Era custom was to hire and house revenue officers, so spending for these purposes is authorized by the Necessary and Proper Clause.

The “great prejudice” way of authorizing incidental powers gives the government some flexibility. For example, Congress has the incidental powers of authorizing the Internal Revenue Service to pay for Internet websites and employing agents to bust international money laundering schemes. These were not an incidental powers in 1788, but they certainly are now.

So each of the enumerated powers, especially when supplemented by the Necessary and Proper Clause, authorizes the federal government to spend money.

But — today the government spends most of its money on activities that are NOT enumerated. How did that come about? More next week.

Rob Natelson

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